UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff

- Appellee,

v. NELSON ALAS, Defendant

- Appellant. No. 22

- 7049 (D.C. No s . 6:19

- CV

- 00219

- RAW & 6:17

- CR

- 00049

- RAW

- 2 ) (E.D. Okla.)

_________________________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

_________________________________ Before McHUGH , MURPHY , and CARSON , Circuit Judges.

_________________________________ This matter is before the court on Nelson Alas’s pro se request for a certificate of appealability (“COA”). He seeks a COA so he can appeal the denial of his 28 U .S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing no appeal is allowed from a “final order in a proceeding under section 2255” unless the movan t first obtains a COA). Because he has not “made a substantial showing of the denial of a constitutional right,” id.

* This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit March 3, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 12 § 2253(c)(2), this court denies his request for a COA and dismisses this appeal. 1 Alas pleaded guilty to a single count of conspiracy to possess with intent to distribute large quantities of methamphetamine. See 21 U.S.C. §§ 841, 846. In exchange for Alas’s guilty plea, the government dismissed numerous additional substantive counts and a count seeking forfeiture of assets derived from th e conspiracy. Th e district court imposed a sentence of 135 months’ imprisonment, a term at the bottom of the advisory range set out in the Sentencing Guidelines. Thereafter, Alas filed the instant § 2255 motion, asserting the government breached the plea agreement by failing to adequately make the district court aware, by the time of sentencing, of any assistance Alas provided “in any ongoing investigation into criminal activity within the Eastern District of Oklahoma and elsewhere, or in the prosecution

1 The government has filed a motion to dismiss this appeal a s untimely. As the basis for that motion, the government asserts Alas was obligated to file his notice of appeal within fourteen days of the entry of the judgment. See Gov’t Motion at 3 (citing Fed. R. App. P. 4(b) ( 1 ) (a)( i )). In a proceeding under § 2255, however, the notice of appeal must be filed within sixty days of entry of the judgment. 28 U.S.C. § 2107(b)(1); Fed. R. App. P. 4(a)(1)(B). This is true because proceedings under § 2255 are civil in nature and involve the United States and/or one its officers or empl oyees sued in an official capacity. United States v. Williams , 790 F.3d 1059, 1077 n. 14 (10th Cir. 2015); United States v. Cruz , 774 F.3d 1278, 1284 (10th Cir. 2014); United States v. Pinto , 1 F.3d 1069, 1070 (10th Cir. 1993). Alas filed his notice of a ppeal within the sixty

- day window and his appeal is, therefore, timely. Accordingly, the government’s motion to dismiss the appeal as untimely is DENIED

. Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 23 of another person who has committed a criminal offense.” He also raised two overarching claims of ineffective assistance of counsel. The district court denied Alas’s request for collateral relief. As to Alas’s claim the government breached the plea agree ment, the district court found it had, in fact, been made aware of Alas’s cooperation and that the matter had been vetted at the sentencing hearing. Furthermore, the district court concluded it was well

- aware of its authority to vary or depart sua sponte based on any such cooperation and that the record demonstrated Alas was not entitled to such relief. As to Alas’s claims of ineffective assistance, the district court concluded they were inconsistent with facts and the record and, more importantly, at odd s with “solemn declarations” Alas made “in open court” during the plea colloquy. See Blackledge v. Allison , 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegat ions unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”). Alas seeks a COA so he can appeal the district court’s denial of his § 2255 motion. The granting of a COA is a juris dictional prerequisite to an appeal from the denial of a § 2255 motion. Miller

- El v. Cockrell , 537 U.S. 322, 335

– 36 (2003). To be entitled to a COA, Alas must make “a Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 34 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller

- El , 537 U.S. at 336 (quotations omitted). In evaluating whether he has satisfied this burden, we undertake “a preliminary, though not definitive, consideration of the [legal] framework” applicable to each of his claims. Id. a t 338. Although he need not demonstrate his appeal will succeed to be entitled to a COA, he must “prove something more than the absence of frivolity or the existence of mere good faith.” Id. (quotations omitted). Having undertaken a review of Alas’s comb ined appellate brief and request for COA, the district court’s order, and the entire record before this court pursuant to the framework set out by the Supreme Court in Miller

- El , we conclude Alas is not entitled to a COA. In so concluding, this court has nothing to add to the district court’s thorough order denying Alas’s § 2255 Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 45 motion. Accordingly, Alas’s request for a COA is DENIED and this appeal is DISMISSED

.
E ntered for the Court
Michael R. Murphy Circuit Judge Appellate Case: 22-7049 Document: 010110821004 Date Filed: 03/03/2023 Page: 5